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Ninth Circuit Court Issues Decision on Forest Roads

September 1, 2010

On August 17, 2010 the Ninth Circuit Court of Appeals issued a ruling that essentially challenges how the Environmental Protection Agency (EPA) has treated runoff from forest roads for the past 26 years. In the decision, the court ruled that storm water control systems on forest roads are point sources that discharge the storm water. If that discharge contains pollutants, which is likely from the road surface, and if it goes into a “water of the United States,” a Clean Water Act (CWA) National Pollution Discharge Elimination System (NPDES) permit will be required. The court issued two holdings:

The EPA does not have authority under the Clean Water Act to define something as a nonpoint source that clearly fits within the statutory definition of point source. Because these systems are conveyances, they have to be treated as point sources.

Logging falls within one of the Standard Industrial Classifications identified by the EPA as subject to the Stormwater Phase I NPDES permit program. Therefore, the EPA lacks any discretion to exclude forest roads from storm water NPDES permits. Previously, the EPA had excluded forestry according to the regulation the court now says cannot apply.

The Forest Landowners Association does not support these additional permits for forestry operations. FLA will continue to work with its partners to assist in remedies for this decision.

To learn more about this issue, or others affecting private forest landowners, please contact Frank Stewart at FMS@Washington-Resource.com or (703) 549-0347.